Misc.] County Court, Orleans County, February, 1902. Daniel Daly, for petitioner. No other appearance. THOMAS, S. The application is for an order requiring a person in possession of premises sold under a decree made by this court to surrender possession to the purchaser. The person proceeded against entered into possession during the pendency of the proceeding in which the sale was directed, claiming as a tenant under a party to the proceeding, and the right of the purchaser to have full possession of what he has paid for quite fully appears. The difficulty is that no express power is given by any statute to this court to put a purchaser in possession, and no adjudged case can be found in which that power has been sustained as being implied. The cases in which the general power of a court which lawfully directs a sale to enforce its decree by putting the purchaser into possession were all determined in the Court of Chancery or the Supreme Court in suits or actions where the general power of a court of equity existed. The leading case on this point is Kershaw v. Thompson, 4 Johns. Ch. 609, 613. In no case has it been held that a court can enforce decree of sale made, not in an action, but in a special proceeding, by putting the purchaser into possession in the absence of express statutory power. The inferences from the language of the court in Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y. 116, are directly the other way. The application must, therefore, be denied. Application denied. CLARA A. HARDING, Respondent, v. JOHN H. PRATT, Appellant. (County Court, Orleans County, February, 1902.) Strays upon highways, Code C. P., ch. 19, tit. X- New trial in County Court in a special proceeding Presumption that the value of twenty-eight cattle exceeded fifty dollars. In view of the fact that the statute as to animals straying upon a highway requires payment out of the proceeds of their sale of costs, justice's fees, damages and a fine for the benefit of the poor of five dollars for each animal, where a woman obtains, in a contested special County Court, Orleans County, February, 1902. [Vol. 37. proceeding taken under the statute, a justice's order declaring her entitled to such relief against twenty-eight head of cattle that entered from the highway and trespassed upon her premises, it will be assumed for the purposes of an appeal by their owner that their total value, although not shown, exceeded fifty dollars and hence he is entitled to a new trial in the County Court and is not limited to an appeal from the order. MOTION to dismiss appeal. Benjamin E. Williams, for motion. Alva A. Sturges, opposed. SIMONDS, J. On the 10th day of September, 1901, Clara A. Harding, the respondent, seized twenty-eight head of cattle belonging to the appellant, John H. Pratt. On the following day she filed a petition with a justice of the peace of the town of Gaines, Orleans county, setting forth, among other things, that said twenty-eight head of cattle, which she fully described, were strays, and had entered upon premises occupied by petitioner in said town, and asked that a precept be issued requiring the owner of the cattle to show cause" why said cattle should not be sold and the proceeds of such sale applied pursuant to the statutes in such case provided." Upon the return day of the precept Pratt appeared and filed a verified answer, and upon an adjourned day the issues framed by the petition and answer were tried before the justice of the peace without a jury, and the justice found in favor of petitioner that the twenty-eight head of cattle were strays running at large upon the highway and escaped therefrom upon the premises of the petitioner, and for sixty cents damages and ten dollars and sixty-five cents costs, and added, "Now on motion of Clara A. Harding it is hereby ordered that the said animals be sold and the proceeds thereof be applied as prescribed in chapter 19 of title 10 of the Code of Civil Procedure." On October second the appellant served his notice of appeal, and with the same gave an undertaking in the sum of $400, with which he filed an order of the Hon. W. Crawford Ramsdale, county judge of Orleans county at that time, reciting that an Misc.] County Court, Orleans County, February, 1902. appeal had been taken and security given therein as prescribed by section 3105 of the Code of Civil Procedure and staying the final order, and that the possession of the animals seized be delivered to appellant. In his notice of appeal, the appellant states that it is from a judgment of $140.60 damages (a statement at variance with the verbiage of the finding and order), and for $10.65 costs, and he demands a new trial in the County Court. The motion is to dismiss this appeal. The questions arising under this motion are principally two. First. Has the appellant any right to a new trial in the County Court. Second. If the appellant has no right to a new trial in the County Court, may the demand for a new trial in the notice of appeal be treated as surplusage, be disregarded, and his appeal heard before the court on argument? Considering these questions in their inverse order, I have no hesitancy in saying that if this be a case where the appellant as a matter of law, is not entitled to a new trial in the County Court, still he is entitled to be heard by the court upon argument His appeal cannot be dismissed without a hearing on the case because he has asked for more than he may be entitled to have. The fact that he has made a demand for a new trial when he is not entitled to that right adds nothing to, neither does it take anything from, his right to be heard by the court upon the original papers and proceedings or verified copies thereof. And the law and practice regarding this question have been too thoroughly discussed and clearly established to require any further elucidation. Kimball v. Rich, 20 N. Y. St. Repr. 153; Matteson v. Hall, 64 How. Pr. 515. The first question, as to the right of the appellant to a new trial in the County Court in this proceeding, is a subject that is quite obscure, with no settled authority to aid one in a correct determination of it. It opens up a new field for discussion and is surrounded by very deep shadows with such scanty light. Section 3104 of the Code of Civil Procedure says "Within ten days after a final order upon a petition is made, as prescribed in this title, an appeal therefrom may be taken by the petitioner, or by the person answering, in like manner as an appeal from a judgment of the justice in an action to recover a sum of money, County Court, Orleans County, February, 1902. [Vol. 37. equal to the value of the animal or animals, and the proceedings thereupon are the same, except as otherwise prescribed in the next section.” Section 3105 has reference to the undertaking, stay and surrender of the possession of the animals. All of which the respondent concedes upon the argument of this motion, have been complied with, but contends that the appellant has not the right to a new trial; and having in this notice of appeal asked for a new trial without a right thereto, his appeal must be dismissed. Section 3068 defines the instances in which a new trial in the County Court may be demanded as a matter of right, to be "Where an issue of fact or an issue of law was joined before the justice, and the sum, for which judgment was demanded by either party in his pleadings, exceeds fifty dollars; or where in an action to recover a chattel, the value of the property, as fixed, together with the damages recovered, if any, exceeds fifty dollars." Title 10, comprising the law pertaining to strays, provides for actions to recover penalties in sections 3082 and 3083, and the action is commenced by summons in the usual way, a complaint stating the cause and what penalties are sought to be recovered in a judgment. Section 3099 provides for an action by the owner in case his animals are willfully set at large and a judgment may be recovered. The other proceedings under title 10, under the provisions of sections 3084 and 3085 are special proceedings instituted by petition and precept, but section 3090 provides that when issue is joined "The subsequent proceedings must be the same as in an action, except as otherwise specially prescribed in this title." And section 3091 provides that upon the trial, if the decision is in favor of the petitioner, the justice must make a final order directing sale of the animals seized, and the application of the proceeds of the sale, as prescribed in section 3092. * * * Now is not the final order a judgment? Upon the trial is not the decision of the justice a finding upon the facts, to the effect, that the animals seized were strays, and were trespassing upon the real property occupied by the petitioner and the judgment or conclusion of law upon that finding, the final order, that the animals be sold and the proceeds of sale pay the costs and expenses allowed by subdivisions 1, 2 and 3, of section 3092, which Misc.] County Court, Orleans County, February, 1902. up to that point are allowed for pursuing the remedy. And then the penalties prescribed in subdivision 4 of that section of $5 per head in this case amounting to $140 on the 28 head of cattle. This proceeding so far as the distribution of the proceeds of the sale is remedial up to said subdivision 4, when it becomes penal in its nature, making the proceeding in part remedial and in part penal. So that if an action instead of a special proceeding were allowed to be instituted for the recovery of those penalties, plaintiff would, in fact, demand a judgment in such case, from the facts before us, for $140, and the other sums paid to him and to the justice would be allowed to him for pursuing the remedy. And in presenting his petition to the justice herein, does not the petitioner ask for a judgment for the payment of $140 out of the proceeds of a sale of those animals, as a penalty besides the costs and allowances for pursuing the remedy? What is meant in section 3104 by the provision that an appeal may be taken by either party "in like manner as an appeal from a judgment of the justice in an action to recover a sum of money, equal to the value of the animal or animals." In this case there is no time or place where or when the value of the animals is fixed, and no law is prescribed saying who shall fix the value of the animals; and the question arises, may we not presume that they were of the value at least of the penalties sought to be recovered from a sale of them in absence of other proof of value which doubtless can be made? It would seem to me that the Legislature did intend that either party might have the right to a new trial in the County Court if the value of the animal or animals arrested exceeded $50. If it were not so intended why was anything said about any sum of money; or the value of the animals, in section 3104. If the party aggrieved could only be heard by the court on argument, why should the Legislature have gone beyond the words in that section "in like manner as an appeal from a judgment of the justice in an action," and have added to recover a sum of money, equal to the value of the animal or animals." I take it that those added words mean something. That they intend a right greater than a hearing before the court on argument as prescribed by section 3062, and that if the animals exceed in value $50 a new trial can be had in the County Court by demanding it as prescribed in section 3068. |